Marriage

Muslim Divorce

Overview

Despite the fact that divorce is acknowledged in many religions, Islam is perhaps the first religion in the world to explicitly recognize divorce as a means of ending a marriage. Divorce was used as a kind of torture in pre-islamic Arabia. The husband had unrestricted power to divorce his wife. Such social and moral illnesses and inequalities drew the Prophet of Islam's attention in order to eradicate the prevalent evils and assure the permanency of marriage without compromising individual liberty. The Muslim divorce law raises two important issues for discussion:

 

  • One is the manner of divorce, i.e., the triple pronouncement of divorce, and 
  • The other is the issue of gender disparity in regard to the right to divorce.

Different Types Of Talaq Practiced By Muslims

Talaq-ul-Sunnat (Approved Mode/Revocable Talaq)

 

Talaq-ul-Sunnat is an accepted kind of Talaq that is carried out in conformity with the Prophet's traditions (Sunna). Talaq-ul-raje is another name for it.

It's further broken down into:

 

(Most Proper) Ahsan:

There are two reasons for being the most proper: For starters, the declaration could be revoked before the Iddat time expires. Second, Talaq's terrible words are only to be spoken once. It is preferable that these remarks are not repeated because they are evil.

There is a single declaration during the period of purity, followed by no retraction by the husband for three consecutive periods of purity in the Ahsan Talaq.

 

Hasan (Right): 

It is not the best mode since the terrible words of Talaq must be recited three times in the Tuhrs that follow.

 

Talaq-ul-Biddat

Talaq-ul-bidat is an irregular form of divorce that is not approved by the Prophet. It is considered to be a Bidat from a religious context. Bidat is an Arabic word which means disapproved, wrong innovation, or forbidden. It is highly condemned, disapproved, and even declared sinful. However, it is considered effective from a religious point of view. It is popularly known as Talaq-ul-Bain or Talaq-ul-mughallazah, that is, irrevocable divorce. It may be pronounced as triple divorce or single irrevocable talaq.

 

The proclamation of Talaq-ul-bidat, by husband, can be made during Tuhr (purity) or even during the menstrual period of women. Such pronouncement may be made even if the husband had sexual intercourse with her since the last menstruation. The husband neither considers the period of purity nor abstention from intercourse. According to Hedaya, if a man repudiates his wife during her course, it is valid. Even though the divorce within the course of the term will be disapproved, it will be lawful. Being an irrevocable form of divorce no changes can be made in  Talaq-ul -bidat.

Divorce Under Muslim Law, 1939

Following are the grounds of Divorce under Section 2 of the Muslim Law 1939 :

 

  1. A woman married under Muslim law has the right to obtain a decree for the dissolution of her marriage if her husband's whereabouts are unknown for four years; however, a decree issued on this basis will not take effect for six months from the date of the decree; if the husband appears in person or through an authorized agent within that time and convinces the court that he is ready to perform his conjugal duties, the court must grant the decree. 
  2. A married Muslim woman can get a divorce decree if her husband has neglected or failed to provide for her maintenance for a period of two years.
  3. If the husband has been sentenced to seven years or more in jail, the woman has the right to have her marriage annulled by the Court, but no ruling can be issued until the sentence has become official.
  4. The wife can have her marriage dissolved by a decree if the husband has failed to perform his marital obligations for three years without justifiable cause.
  5. The wife is entitled to a judicial divorce for the dissolution of her marriage if the husband was impotent at the time of the marriage and continues to be so. Before granting such a decree on this cause, the Court shall, upon the husband's application, make an order requiring the husband to satisfy the court within one year of the date of such order that he has ceased to be impotent, and if he does so, no judgment on this ground shall be passed.
  6. The wife may seek a judicial divorce under the Act if the husband has been mad for two years or is suffering from leprosy or a virulent venereal illness. It's worth noting that leprosy and virulent sickness don't have to be two years old; in fact, they can be rather recent.
  7. She is entitled to a divorce if she was given in marriage by her father or other guardians before the age of 15 years and the marriage was not consummated since he repudiated it before reaching the age of eighteen.
  8. Husband's Cruelty
  9. A decree for the dissolution of her marriage on any other cause recognized as valid for the dissolution of marriage under Muslim law is likewise available to the wife. For example, a wife may seek her divorce by legal order based on a false claim of infidelity leveled against her (Lian).

Irrespective of the mode of divorce, the below are legal effects on the parties' rights and obligations that follow divorce:

 

  1. The parties are now free to enter into another marriage contract. The wife may marry another spouse after completing her Iddat if the marriage was consummated; if the marriage was not consummated, she is free to marry immediately.
  2. If the marriage is consummated, the wife is entitled to immediate payment of all unpaid dower, both immediate and delayed.
  3. When a divorce becomes final and irreversible, reciprocal inheritance rights end.
  4. After a divorce has become irreversible, cohabitation becomes illegal, and the children born of such an affair are illegitimate and cannot be legitimized by acknowledgment.
  5. Where the husband has divorced the wife by three declarations, remarriage between divorced couples is not legal unless and until the following course is followed:
  • After observing Iddat, the wife must be lawfully married to another husband;
  • this interim marriage must be actually completed; 
  • the second husband must either declare divorce or die;
  • The wife must observe Iddat after this divorce or death

FAQs On Muslim Divorce

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